JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANOTHER …Appellants VERSUS SHIVNATH & OTHERS …Respondents

whether the High Court was right in upholding the judgment of the first Appellate Court by observing that in the absence of any order of abandonment or revocation of the patta given to the respondents-plaintiffs, grant of patta (Ex.D-20) in 1929 in favour of the appellants-defendants was illegal and that the appellants-defendants cannot claim right based upon Ex.D-20 and other documents.

Unless shown perverse – concurrent findings can not be distrubed 

concurrent finding of the High Court and the first Appellate Court – unless  are shown to be perverse, Apex court /this Court would certainly interfere with the findings of fact recorded by High court

Admitted facts need not be proved

Section 58 of the Evidence Act, no doubt, postulates that the things admitted need not be proved. However, proviso to Section 58 of the Evidence Act gives full discretion to the court to require the facts admitted to be proved otherwise than by such admission. When the respondents-plaintiffs have filed the suit for declaration of their title, the respondents-plaintiffs cannot isolate few sentences in the written statement and take advantage of only those part of the written statement which are favourable to them. The written statement filed by the appellants-defendants has to be read in toto.

Thirty years old document presumption as to genuineness

Ex. D-20 being thirty year old document gives rise to presumption as to its genuineness. Contention of the respondents-plaintiffs is that Section 90 of the Evidence Act has no application to Ex. D-20 and the presumption cannot be raised as to the genuineness of the contents of the document. Section 90 of the Evidence Act enables the court to draw presumption about the genuineness of the document which is thirty years old. Section 90 lays down that the court “may presume” that the document is genuine. Since the patta granted in favour of Gaya Din is of Samvat 1986 (1929 A.D.) which is more than thirty years old, Section 90 raises presumption as to the authenticity of the document. Mere allegations of fraud would not be sufficient to rebut the presumption raised under Section 90 of the Evidence Act.

Declaration of title and possession – Plaintiff has to prove his case

It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of theirown title and not on the weakness of the case of the defendantsappellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffsrespondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not,

Or.41, rule 27 CPC additional evidence at appellate stage

The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving acertain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment.The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” “Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2176 OF 2007
JAGDISH PRASAD PATEL (DEAD)
THR. LRS.& ANOTHER …Appellants
VERSUS
SHIVNATH & OTHERS …Respondents
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated 05.02.2007
passed by the High Court of Madhya Pradesh at Jabalpur
dismissing the Second Appeal No.174 of 1989 filed by the
appellants, thereby affirming the decision of the first Appellate
Court in Civil Appeal No.29-A/85 holding that in the absence of any
order of abandonment or revocation of the patta given to the
forefathers of the respondents-plaintiffs, grant of patta in favour of
the appellants/defendants was illegal and that the appellantsdefendants cannot claim any right over the suit properties.

  1. Case of Respondents-plaintiffs is as under:-
    Respondents-Shiv Nath and deceased Vishwanath/predecessor in
    interest of respondents No.2 to 10 filed a suit for declaration of title
    1
    over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17,
    163-3.92 and 164-2.15 Kita 5 total area 10.33 situated in Village
    Bairath General No.782, Tehsil Gopad Banas and possession of all
    the khasra numbers except khasra No.164 against the father of the
    appellants-Hanuman Din. Ram Sahai and Rameshwar – fathers of
    the plaintiffs were the joint lessees of the lands in khasra Nos. 41,
    131, 132, 136/13, 135, 134/4, 137/27, 140/11, 142/2, 143, 146,
    147, 162, 163/25, 164/4 and 257 total measuring 21.45 acres and
    their names were included as ‘lessees’ of the above lands during
    the settlement and they kept on cultivating the lands till forty years
    back when a partition took place between the two and both of them
    became owners of half part each. Hanuman Din never remained in
    possession of any part of the lands nor he had any right or
    entitlement over the suit lands; but the grandfather of the
    appellants-Gaya Din got a lease in disputed lands of the
    respondents which according to the respondents is a forged
    document. Based on the aforesaid lease, Gaya Din got his name
    entered as khatedar in respect of the khataunis of the disputed
    lands.
  2. Respondent-deceased Vishwanath-predecessor-in-interest of
    respondents No.2 to 10 filed an application before the Collector in
    2
    August, 1969 stating that the lease of the disputed lands was
    wrongly issued by illaqedar in the name of Gaya Din and the
    proceedings for cancellation of the records in the name of Gaya
    Din be initiated. The matter was sent to the Revenue Inspector for
    enquiry who submitted his report in favour of respondents in
    respect of the ownership of the lands in dispute and the Collector
    registered the report after approving it. In proceedings before the
    Sub-Divisional Magistrate in Miscellaneous Case No.351/142/69
    under Section 145 Cr.P.C. initiated by Hanuman Din, the
    Sub-Divisional Magistrate found Hanuman Din in possession of
    lands in khasra Nos.162 and 163 and respondents were found in
    possession of land in khasra No.164. Respondents-plaintiffs
    alleged that pursuant to the order of the Sub-Divisional Magistrate,
    Hanuman Din forcibly took possession of land in khasra No.41 and
    therefore, the respondents filed suit for declaration and permanent
    injunction.
  3. Hanuman Din resisted the suit contending that the
    respondents have never remained in ownership or possession of
    the disputed lands and the lands belonged to one Ram Raj Singh
    but he was not cultivating the lands and gave it to the
    predecessors of the respondents for cultivation on the basis of
    3
    Batai-crop sharing and only because of this, patta was granted at
    the time of settlement in their names. The appellants further
    averred that the father of the respondents abandoned the lands
    and since revenue tax was not being paid, the khata of the
    disputed lands was cancelled. Case of the appellants-defendants
    is that in the auction held by Pawaidar for lease of suit lands and
    other lands, bid of Gaya Din was accepted and in this regard, a
    lease was issued in his name in Samvat 1986 (1929 A.D.). The
    appellants had been in continuous possession of the suit
    properties and the same is reflected in the khataunis and other
    revenue records.
  4. The trial court vide judgment dated 02.07.1985 dismissed the
    respondents’ suit by holding that Gaya Din has been holding pattalease (Ex.D-20) in respect of the suit lands and has been in
    continuous possession of the disputed lands since 1950 and
    thereafter, Hanuman Din was in possession of the same. After
    referring to the orders of the Commissioner (Ex.D-1), the trial court
    held that the Commissioner recorded a finding of fact that the
    respondents got the entries made in the revenue records in their
    names in connivance with the Patwari. The trial court held that the
    lease-patta (Ex.D-20) was issued by the then iIlaqedar to Gaya Din
    4
    and that the said document being more than thirty years old is a
    genuine one. After referring to various khasras and the entries
    thereon in the name of appellant’s father, it was held that the
    appellants’ father Hanuman Din has been in possession of the suit
    lands since 1950 or prior to that. The trial court further held that the
    suit was instituted on 17.10.1975 which is beyond twelve years and
    that the suit is barred by time.
  5. In appeal, the first Appellate Court vide its judgment dated
    03.04.1989 held that at the time of settlement, patta was granted in
    the name of father of the respondents and this has not been
    disputed by the appellants and the appellants could not establish
    abandonment of the lands by the father of the respondents and
    therefore, the respondents ought to be treated as owners of the
    suit properties. The first Appellate Court further held that the lease
    Ex.D-20 produced by the appellants cannot be held to be a valid
    one and in absence of order of revocation of the patta granted to
    the respondents, it cannot be held that Ex.D-20 confers right of
    ownership on the appellants over the disputed lands. The first
    Appellate Court held that merely because of production of pattalease – Ex.D-20 by Hanuman Din, it cannot be said to have been
    proved and therefore, it cannot be held that Hanuman Din has a
    5
    legal right of ownership on the disputed lands. The first Appellate
    Court noted that on the basis of Ex.D-1 – order of the
    Commissioner, possession of the suit properties by the appellants
    cannot be held to be proved, since the respondents or their
    ancestors were not parties to the said proceedings. On these
    findings, the first Appellate Court set aside the judgment of the trial
    court and held that the respondents are the owners of the disputed
    lands and held that the respondents are entitled to get possession
    of the lands in khasra Nos. 41, 131, 162 and 163 from the father of
    the appellants.
  6. In the second appeal, the High Court affirmed the findings of
    the first Appellate Court and held that the suit lands were recorded
    in the name of fathers of the respondents and that there was no
    document on record to show that they have abandoned the
    possession of the lands or surrendered the same in favour of
    iIlaqedar. It was held that though patta-lease – Ex.D-20 was
    granted in favour of grandfather of the appellants, the appellants
    have not adduced any evidence to prove abandonment of the
    lands in favour of iIlaqedar and no right accrued to the appellants
    on the basis of the patta (Ex.D-20). Being aggrieved, the
    appellants have preferred this appeal.
    6
  7. We have heard Mr. Subodh Markandeya, learned senior
    counsel for the appellants-defendants and Mr. A.K. Shrivastava,
    learned senior counsel for the respondents-plaintiffs. We have
    considered the submissions and carefully perused the impugned
    judgment and the judgment of the courts below and other materials
    on record.
  8. The point falling for consideration is whether the High Court
    was right in upholding the judgment of the first Appellate Court by
    observing that in the absence of any order of abandonment or
    revocation of the patta given to the respondents-plaintiffs, grant of
    patta (Ex.D-20) in 1929 in favour of the appellants-defendants was
    illegal and that the appellants-defendants cannot claim right based
    upon Ex.D-20 and other documents.
  9. The impugned judgment of the High Court is the concurrent
    finding of the High Court and the first Appellate Court. We are
    conscious that in an appeal under Article 136 of the Constitution of
    India, the concurrent findings cannot be interfered with unless
    warranted by compelling reasons. When the finding of the first
    Appellate court and the High Court are shown to be perverse, this
    Court would certainly interfere with the findings of fact recorded by
    7
    the High Court. [Vide Mahesh Dattatray Thirthkar v. State of
    Maharashtra (2009) 11 SCC 141]
  10. The respondents-plaintiffs–Shiv Nath and deceased
    Vishwanath filed suit for declaration of title over the suit lands in
    khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and
    164-2.15 total area 10.33 situated in Village Bairath General
    No.782, Tehsil Gopad Banas on the plea that a lease/patta was
    issued in favour of their fathers and that their names were
    included as ‘lessees’ of the suit lands during settlement and that
    they have been cultivating the lands till forty years back when
    partition took place between the two and both Shiv Nath and
    deceased Vishwanath became owners of half portion each.
  11. The appellants-defendants resisted the suit contending that
    Ram Raj Singh was the original owner of the lands but he was
    not cultivating the lands and settlement patta was given in the
    name of the fathers of respondents namely Ram Sahai and
    Rameshwar on the basis of Batai-crop sharing at the time of
    settlement and the predecessors of respondents-plaintiffs have
    not cultivated the lands. The appellants-defendants further
    averred that the forefathers of respondents-plaintiffs abandoned
    the suit lands and since revenue tax was not paid, the lease of
    8
    the suit lands in favour of respondents-plaintiffs was cancelled.
    The then illaqedar accepted the bid of the defendant’s father
    Gaya Din in the auction held in the year 1929-Samvat 1986. The
    appellants-defendants have claimed ownership and possession
    over the lands in dispute on the basis of the patta Ex.D-20 (Ex. P21) that was issued in their favour in Samvat 1986 (1929 A.D.)
    and averred that since then they are in possession of the
    disputed lands.
  12. The suit of the respondents-plaintiffs is for declaration of
    their title to the suit lands and consequential delivery of the suit
    lands. Having filed the suit for declaration of title, the plaintiffs
    could succeed in their suit only by adducing sufficient evidence to
    establish their title. But the plaintiffs have not produced the patta
    granted to their fathers. PW-1-Vishwanath, in his deposition,
    stated that the original patta was very old, torn and the same is
    not with them. The respondents-plaintiffs have produced the
    report of the Revenue Inspector dated 05.10.1969 (Ex. P-3) as
    per which on the application of Vishwanath, an enquiry was made
    and it was found that the name of pattedar is Gaya Din. Gaya
    Din and Shiv Nath are shown as lease holders. In Ex.P-3, it is
    further stated that in Khatauni No.58/59, it was found that names
    9
    of Ram Sahai and Rameshwar Kurmi are found recorded as
    owners of land numbers 51/1.38, 162/0.17, 163/3.72, 164/2.65
    and 131/2.70. It was further stated that the patta illaqa of the
    above numbers are found registered in the name of Gaya Din.
    Ex.P-3-report notes the entries in Ex.D-20-patta to the effect that
    permission to make entry in respect of the patta granted vide
    order No.146/1960 dated 21.11.1960 issued by the Tahsildar in
    the official record has been given after due inspection and entry
    in khasra is found made by the concerned Patwari on 10.01.1961.
  13. In his evidence, PW-1 has stated that patta-lease was
    issued in the name of his father. In his written statement,
    defendant Hanuman Din also admitted that the plaintiffsrespondents’ fathers were lessees and patta-lease was originally
    granted in their favour during the settlement period for cultivation
    on the basis of Batai-crop sharing. The trial court as well as the
    first appellate court held that the lease was granted in favour of
    father of respondents-plaintiffs at time of the settlement and they
    were held to be original lessees. The trial court while deciding
    issue No.2(A), observed that the grant of lease in the name of
    father of respondents-plaintiffs in the settlement is not rebutted by
    the appellants-defendants. Drawing our attention to the findings
    10
    of the trial court that patta was granted in favour of the father of
    the respondents-plaintiffs, the learned senior counsel for the
    respondents-plaintiffs submitted that this amounts to admission
    and in terms of Section 58 of the Evidence Act, admitted facts
    need not be proved. Placing reliance upon Nagindas Ramdas v.
    Dalpatram Iccharam alias Brijram and others (1974) 1 SCC
    242 and Executive Officer, Arulmigu Chokkanatha Swamy
    Koil Trust, Virudhunagar v. Chandran and others (2017) 3
    SCC 702, it was submitted that in view of clear admission of grant
    of lease in the name of father of respondents-plaintiffs, the said
    admitted fact need not be proved.
  14. Section 58 of the Evidence Act, no doubt, postulates that
    the things admitted need not be proved. However, proviso to
    Section 58 of the Evidence Act gives full discretion to the court to
    require the facts admitted to be proved otherwise than by such
    admission. When the respondents-plaintiffs have filed the suit for
    declaration of their title, the respondents-plaintiffs cannot isolate
    few sentences in the written statement and take advantage of
    only those part of the written statement which are favourable to
    them. The written statement filed by the appellants-defendants
    has to be read in toto. It is pertinent to note that in para No.(2) of
    11
    the written statement, the appellants-defendants averred that the
    lands were in the ownership of Ram Raj Singh at the time of the
    settlement, but because he was not in a position to cultivate the
    same himself, the lands were given to the father of the
    respondents-plaintiffs for cultivation on the basis of Batai-crop
    sharing. It is further averred that the then Halkedar cancelled the
    lease in respect of disputed lands and the same were auctioned
    in which the bid of the defendants’ father Gaya Din was accepted
    and the disputed lands were transferred in his name in the sale in
    Samvat 1986 i.e. 1929 A.D. The lease of the lands was issued in
    the name of Gaya Din. The admission of the defendants as to
    the lease of the plaintiffs’ father was the lease earlier granted in
    favour of the forefathers of the respondents. In the light of the
    pleadings and the oral and documentary evidence adduced by
    the defendants, notwithstanding the admission in the written
    statement, the burden lies upon the respondents-plaintiffs to
    prove that the patta-lease continues to be in their favour and that
    they are the holders of patta and that they are in continued
    possession of the suit properties.
  15. In his cross-examination, PW-1 stated that his father left for
    Jabalpur about forty years prior to the institution of the suit. In the
    12
    cross-examination, PW-1 however denied the suggestion that
    when his father left for Jabalpur, he handed over the disputed
    lands to Pawaidar and all the records at the relevant time were
    kept by the iIlaqedar. From the statement of PW-1-Vishwanath
    and PW-2-Ram Gopal, it is evident that the father of Vishwanath
    had started living in Jabalpur forty years back prior to institution of
    the suit and settled there. In the light of the evidence adduced,
    the trial court rightly accepted the case of the defendants that in
    Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for
    lease of suit lands and other lands, bid of Gaya Din was accepted
    and the suit properties along with other lands were given on lease
    to Gaya Din. We find substance in the submission of the learned
    senior counsel for the appellants that if the lands were not left so
    abandoned by the father of respondents-plaintiffs, it would not
    have been possible for the Pawaidar to auction the lease of the
    suit lands and grant lease of the lands in favour of Gaya Din.
  16. Case of the appellants-defendants that in Samvat 1986
    (1929 A.D.), in the auction held by Pawaidar for lease of suit
    lands and other lands, the suit properties along with other lands
    were given on lease to Gaya Din, is strengthened by revenue
    records and ample evidence. The Pawaidar sanctioned entries
    13
    regarding grant of patta to Gaya Din to be made in the
    Government records. The appellants-defendants produced their
    patta-Ex. D-20 which has also been produced by the
    respondents-plaintiffs (Ex. P-21). Ex. D-20 is the patta kashtkari
    as per the order of the Hon’ble Shri Rai Saheb Churhat, Halka
    Patwari No.1, Region Churhat, State Rewa, Location Mauja
    Kother, in Samvat 1986 in the name of Gaya Din as
    farmer/cultivator for the suit properties granted for agricultural
    purpose. From Ex. D-20, it is seen that as per Tahsildar order
    No.146/1960 dated 21.11.1960, Pawaidar has been allowed to
    enter in government serial. As per the order of the Tahsildar,
    entry has been made accordingly in Pawai Khasra as is clear
    from the endorsement made by Patwari dated 10.01.1961 in
    Ex.D-20.
  17. Ex. D-20-patta in favour of Gaya Din was validly granted by
    the iIIaqedar to Gaya Din in the year 1929. The said documents
    issued by the Tahsildar were produced from the custody of the
    appellants. The contents thereon show that as per the
    Government records, the lands had been given to Gaya Din. The
    documents being more than thirty years old, the trial court rightly
    presumed the Ex.D-20-patta of genuine. It was then up to the
    14
    respondents to rebut the presumption. This has not been
    controverted by the respondents-plaintiffs.
  18. Ex. D-20 being thirty year old document gives rise to
    presumption as to its genuineness. Contention of the
    respondents-plaintiffs is that Section 90 of the Evidence Act has
    no application to Ex. D-20 and the presumption cannot be raised
    as to the genuineness of the contents of the document. Section
    90 of the Evidence Act enables the court to draw presumption
    about the genuineness of the document which is thirty years old.
    Section 90 lays down that the court “may presume” that the
    document is genuine. Since the patta granted in favour of Gaya
    Din is of Samvat 1986 (1929 A.D.) which is more than thirty years
    old, Section 90 raises presumption as to the authenticity of the
    document. Mere allegations of fraud would not be sufficient to
    rebut the presumption raised under Section 90 of the Evidence
    Act.
  19. The respondents-plaintiffs have produced the copies of
    khasras of several years. However, only the copies of khasra for
    the years 1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the
    name of respondents-plaintiffs; and in the previous khasras for
    the years 1950-51 to 1954-55 (Ex. P-8) and subsequent khasras
    15
    for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69
    (Ex. P-14) and 1970-71 to 1975 (Ex. D-2), the entries are in the
    name of the father of the appellants-defendants. The lease was
    granted in favour of Gaya Din and that he and Hanuman Din had
    been continuously in possession of the properties is thus
    established by the revenue records.
  20. From perusal of the Khatauni for the year 1952-53 (Ex.P-2)
    produced by the plaintiffs, it is seen that the appellantsdefendants are in possession of the suit lands from the year
    1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent
    khasras 1960-61 onwards. The names of the appellantsdefendants being mentioned in the khasra 1950-51 to 1954-55 is
    very crucial. The reason being Vindhya Pradesh Abolition of
    Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came
    into force on 30.07.1953. Ex. D-20 (Ex. P-21) – lease was
    granted in favour of the predecessors of the appellantsdefendants namely Gaya Din by Pawaidar under Section 44 of
    the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land
    Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the
    trial court rightly held that the Pawaidar was empowered to issue
    the lease and that lease (Ex. D-20) was issued under
    16
    Section 141 of the Act. It was therefore rightly held by the trial
    court that the lease (Ex. D-20) is valid and that the appellantsdefendants have proved that the lease of the lands was legally
    given by illaqedar in favour of their father.
  21. The revenue records produced by the appellants for several
    years amply strengthen the case of the appellants that patta
    (Ex. D-20) was granted to them and that they are in possession of
    the suit properties for several years. The oral and documentary
    evidence clearly establish that the father of the respondentsplaintiffs has abandoned the suit properties, pursuant to which,
    auction was held by the Pawaidar and lease was issued by
    illaqedar in favour of Gaya Din and that he was in continuous
    possession of the suit properties.
  22. In the plaint, the respondents/plaintiffs have alleged that
    Ex. D-20-patta is a forged one. In para No.(4) of the plaint, it is
    alleged that without knowledge of the respondents/plaintiffs’
    father, defendants’ father Gaya Din got the lease from Ilaqa
    Churhat by illegal means and Gaya Din never remained in
    possession of the properties. The respondents-plaintiffs have not
    produced any document to prove that Ex. D-20 is a forged one.
    The plaintiffs at one place averred that without the knowledge of
    17
    the plaintiffs and their father, Gaya Din succeeded in getting the
    lease by illegal means of the disputed lands from iIlaqa therein;
    whereas in para No.(5), the respondents-plaintiffs alleged that the
    document is a forged one. In fact, as pointed out earlier, the
    respondents themselves have filed the patta granted in favour of
    the appellants-defendants. It is pertinent to note that Vishwanath
    had given an application for inspection of the area (patta) in
    respect of land numbers 41, 131, 162, 163 and 164 situated in
    Village Bairath. The Collector called for the report from the
    Revenue Inspector and as per the Report of the Revenue
    Inspector (Ex. P-3), though the names of Ram Sahai and
    Rameshwar are found recorded as owners of the said lands,
    patta illaqa of the above land numbers was found registered in
    the name of Gaya Din. The report of the Revenue Inspector
    refers to the entry in respect of patta granted vide order
    No.146/1960 dated 21.11.1960 issued by the Tahsildar. It also
    refers to entry in khasra made by the concerned Patwari on
    10.01.1961 which is in possession of Hanuman Din-predecessor
    of the appellants. Ex. P-3-Report of Revenue Inspector states
    that the patta-Ex. D-20 was granted in favour of Gaya Din.
    18
  23. The entries which are consistently in favour of the
    appellants ought not to have been ignored in preference to the
    entries in favour of the respondents only for two years i.e. 1955-
    56 and 1956-57. Moreover, in the light of the findings by the
    revenue authorities on several occasions, the said entries in the
    name of the respondents cannot be said to be genuine. The first
    Appellate Court and the High Court were not right in brushing
    aside Ex. P-21 (Ex.D-20) patta granted in the name of the
    appellants and other crucial documents like report of the Revenue
    Inspector (Ex. P-3) which notes that patta illaqa is in the name of
    Gaya Din and the several entries in the revenue records are in
    the name of the appellants. In the absence of the contra
    evidence adduced by the respondents-plaintiffs, the trial court
    rightly held that the appellants have been in continuous
    possession of the suit properties and that the respondents have
    failed to prove their right over the suit properties prior to filing of
    the suit.
  24. Ex. D-1– Order of the Commissioner dated 17.07.1973:-
    In the proceeding initiated by the appellants’ father – Hanuman
    Din, an application was filed before the District Collector alleging
    interpolation by patwari in the gashti – khasras at the behest of
    19
    the plaintiffs-respondents–Vishwanath, Shiv Nath and Jairaj
    Kumari in respect of khasra Nos. 131,151,161,162,163 and 411.
    The order of the Commissioner refers to the order passed by
    Tahsildar dated 28.07.1971 upholding the entries in favour of
    appellants’ father Hanuman Din and rejecting the plaintiffsrespondents’ claim. After personally perusing the relevant
    khasras, the Tahsildar held that entries for the years 1963-64 to
    1968-69 made in favour of plaintiffs-respondents were
    subsequently made and Tahsildar directed correction of khasra
    entries in favour of appellant’s father. In revision, the Collector
    upheld the said order of the Tahsildar dated 28.07.1971.
  25. In revision against the order of the Collector, the
    Commissioner vide order dated 17.07.1973 upheld the order of
    Tahsildar observing that from perusal of SDO’s report dated
    21.10.1969 and the order of Tahsildar dated 28.07.1971, the
    mischief of patwari was proved beyond shadow of doubt. These
    orders were not challenged by the plaintiffs-respondents and are
    binding on them. The relevant portion of the order of the
    Commissioner reads as under:-
    “In the Court of Shri Jagat Swarup, Commissioner Rewa Divn.
    Rewa, M.P.
    Case No.52/A.61/71-73: Dated 17.07.1973
    20
    ……….
  26. A perusal of the records of the lower courts reveals that
    N.A. Hanuman filed an application dated 19.09.1969 before
    Collector Sidhi alleging interpolation by Patwari in the GashtiKhasaras in respect of Khasra Nos.131, 151, 161, 162, 163 and
    41 of Village Bairath, Tehsil Gopadbanas. The application was
    sent to SDO for enquiry. SDO reported vide his report dated
    21.10.1969 that the allegations are true and the patwari was
    guilty of grave misconduct. The charge of interpolation is
    amply proved. Collector also found the report to be true,
    but ordered that Tehsildar should hear the opposite party
    before ordering correction (Order Sheet dated 23.10.1969).
    Tehsildar held the enquiry and on the basis of documents
    and oral evidence ordered correction of khasra entries for
    the year 1963-64 to 1968-69 vide his order dated 28.07.1971.
    The perusal of SDO’s report dated 21.10.1969 and the order
    of Tehsildar dated 28.07.1971 reveals that the mischief of
    patwari was proved beyond a shadow of doubt. The order
    passed by the Tehsildar has to be treated as administrative in
    nature and cannot be set aside u/s 50 of the M.P. Land Revenue
    Code, 1959.
  27. So far as the present proceedings u/s 50 of the M.P. Land
    Revenue Code, 1959 are concerned, they do not lie.
    Administratively, I uphold the order dated 28.07.1971 passed by
    the Tehsildar, because it is based on unassailable logic. After all,
    patwari cannot be the final arbiter of the destinies of cultivators.”
    From the above order of the Commissioner and the report of the
    other revenue authorities, it is clear that the plaintiffs-respondents
    have made interpolation in the revenue entries in connivance with
    Patwari and got the revenue entries recorded in their names. The
    21
    High Court and the first Appellate Court erred in not considering
    Ex.D-1-order of the Commissioner in its proper perspective.
  28. Application filed for receiving additional evidence:- The
    question may arise that though the number of orders were
    passed in various proceedings before the Revenue Authorities,
    why the respondents-plaintiffs have not challenged the same then
    and there. The real fact is that the respondents-plaintiffs did
    challenge various orders passed by the revenue authorities
    before the concerned authorities and lost. Unfortunately, those
    documents have not been filed by the appellants-defendants in
    the courts below. Before this Court, the appellants-defendants
    have filed an application to receive three additional documents
    which are the orders passed by the Naib Tahsildar dated
    01.09.1962, order of Tahsildar dated 28.07.1971 and order of
    Collector dated 21.11.1972. The three documents which
    according to the appellants are relevant are:-
    S.No. Documents Remarks
  29. 01.09.1962 – Order passed by the Naib
    Tahsildar, Gopad Banas in the suit filed
    by Shivnath, son of Ram Sahai and
    Shivnath, son of Rameshwar under
    Section 250 of M.P. Land Revenue
    Code, 1959.
    Application was
    dismissed holding that the
    patta of the land was
    issued by the Tahsildar in
    favour of Gayadin – father
    of the appellantdefendant.
  30. 28.07.1971 – Order of Tahsildar, Gopad
    Banas in Civil Suit No.26 A74/70-71 in
    the suit filed by Hanuman – son of

Gayadin

  1. 21.11.1972 – Order of the Collector,

District Siddi

22
The learned senior counsel for the respondents submitted that
there is a clear bar to adduce additional evidence in the appellate
court subject to circumstances stated under Order XLI Rule 27
CPC and no such circumstance has been set-forth in the
application filed by the appellants. It was submitted that there was
no pleading to that effect in the written statement and if the
application to receive additional evidence is allowed then it would
amount to de novo trial of the suit which was filed nearly after
forty-nine years. It was further submitted that when these
documents were neither filed in the trial court nor before the first
appellate court nor before the High Court, the Supreme Court
cannot entertain the documents filed as additional evidence. In
support of his contention, the learned senior counsel relied upon
Karewwa and others v. Hussensab Khansaheb Wajantri and
others (2002) 10 SCC 315 and Roop Chand v. Gopi Chand
Thelia (1989) 2 SCC 383 and other decisions.

  1. Under Order XLI Rule 27 CPC, production of additional
    evidence, whether oral or documentary, is permitted only under
    three circumstances which are: (I) Where the trial Court had
    refused to admit the evidence though it ought to have been
    admitted; (II) the evidence was not available to the party despite
    23
    exercise of due diligence; and (III) the appellate Court required
    the additional evidence so as to enable it to pronounce judgment
    or for any other substantial cause of like nature. An application for
    production of additional evidence cannot be allowed if the
    appellant was not diligent in producing the relevant documents in
    the lower court. However, in the interest of justice and when
    satisfactory reasons are given, court can receive additional
    documents.
  2. In Union of India v. Ibrahim Uddin & Another, (2012) 8
    SCC 148, this Court held as under:-
    “36. The general principle is that the appellate court should not
    travel outside the record of the lower court and cannot take any
    evidence in appeal. However, as an exception, Order 41 Rule 27
    CPC enables the appellate court to take additional evidence in
    exceptional circumstances. The appellate court may permit
    additional evidence only and only if the conditions laid down in
    this Rule are found to exist. The parties are not entitled, as of
    right, to the admission of such evidence. Thus, the provision
    does not apply, when on the basis of the evidence on record, the
    appellate court can pronounce a satisfactory judgment. The
    matter is entirely within the discretion of the court and is to be
    used sparingly. Such a discretion is only a judicial discretion
    circumscribed by the limitation specified in the Rule itself. (Vide
    K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526,
    Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965
    SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and
    Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)
    24
  3. The appellate court should not ordinarily allow new evidence
    to be adduced in order to enable a party to raise a new point in
    appeal. Similarly, where a party on whom the onus of proving a
    certain point lies fails to discharge the onus, he is not entitled to
    a fresh opportunity to produce evidence, as the court can, in
    such a case, pronounce judgment against him and does not
    require any additional evidence to enable it to pronounce
    judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and
    Mohd. Ali and Co. (1978) 2 SCC 493)
    …….
  4. The inadvertence of the party or his inability to understand
    the legal issues involved or the wrong advice of a pleader or the
    negligence of a pleader or that the party did not realise the
    importance of a document does not constitute a “substantial
    cause” within the meaning of this Rule. The mere fact that
    certain evidence is important, is not in itself a sufficient ground
    for admitting that evidence in appeal.”
    “47. Where the additional evidence sought to be adduced
    removes the cloud of doubt over the case and the evidence has
    a direct and important bearing on the main issue in the suit and
    interest of justice clearly renders it imperative that it may be
    allowed to be permitted on record, such application may be
    allowed.”
  5. The order of the Commissioner dated 17.07.1973 refers to
    the order of the Tahsildar dated 28.07.1971 and also the report of
    the SDO dated 21.10.1969. We are inclined to receive the order
    of Tahsildar dated 28.07.1971 as additional evidence. From the
    order of the Tahsildar dated 28.07.1971, in Civil Suit
    No.26A74/70-71 filed before Tahsildar, it is seen that Hanuman
    25
    Din-applicant thereon filed an application before the Collector,
    Sidhi stating that he is the land owner-cultivator of the land
    numbers 131, 151, 161, 162, 163, 41 of the village Bairath and
    has been in possession of the lands and that the non-applicants
    (Vishwanath, Shiv Nath and Jairaj Kumari) got their names
    recorded in revenue entries in connivance with Shri Bansh
    Bahadur Singh, Patwari and prayed for rectification of the entries.
    A report was called from the SDO who held a detailed enquiry
    and submitted a report. Based upon such enquiry and report of
    the SDO dated 21.10.1969, the Tahsildar held that the entry in
    regard to possession of the non-applicants (Vishwanath, Shiv
    Nath, Jairaj Kumari) in respect of land numbers 41, 131, 162, 163
    was found to be made subsequently and held as under:-
    “9. As far as the rectification in the Khasra entries for the years
    1968-69 or prior to it is concerned, application is allowed as per
    para 8 and therefore, question regarding dispute in regard to
    subsequent years of the above years does not arise at all. I have
    personally perused the Khasra for the years 1963-64 to 1967-68
    and I find that apart from the entries made in the column No.12
    of the Khasra pertaining to the land No.41 at the time of inquiry,
    “Vishwanath, Shivnath Kurmi, R/o Deh 41/1.39” it specifically
    appears to be made subsequently.…… Thus, it is proved that the
    entry in regard to the possession of non applicants Vishwanath,
    Shivnath and Jairaj Kumri in respect of land No.41, 151, 162 and
    163 is found proved to be made subsequently.”
    26
    “10. Now, it is to be seen that who was in the possession of the
    disputed land prior to the disputed years. In this regard, none of
    the parties has produced any evidence. Hence in the interest of
    justice, I have called for the Khasra for the years 1961-62, 1962-
    63 and gone through it and then apart from the Land No.131,
    non applicants are not found to be in the possession of the
    above land. In such circumstances, it is clear that Patwari Halqa
    with the intention to create dispute in respect of the disputed land
    has committed forgery before his retirement.
    Thus, the entries for the year 1963-64 to 1968-69 in
    relation to possession of the applicants on the land No.41, 151,
    161, 162 and 163 be recorded rectified in place of the non
    applicants on the basis of entries for the year 1962-63 …..”
  6. The learned senior counsel appearing for the plaintiffsrespondents raised strong objections contending that the said
    order of the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70-
    71 cannot be received as additional evidence and cannot be
    looked into as the said documents were not produced before the
    trial court nor were there reference to those documents in the
    written statement. We find no merit in the contention that the
    order of the Tahsildar dated 28.07.1971 cannot be looked into on
    the ground that they were not adduced as evidence before the
    trial court. Order of the Commissioner, Rewa in Case No.52A
    61/71-73 marked as Ex. D-1 dated 17.07.1973 makes a clear
    reference to the order of the Tahsildar dated 28.07.1971. Since in
    27
    Ex.D-1 (17.07.1973), there is reference to the order of the
    Tahsildar dated 28.07.1971, the same is received as additional
    evidence. The order of the Tahsildar dated 28.07.1971 has a
    direct bearing on the main issue in the suit and in the interest of
    justice, the same has to be received as additional evidence.
    Since Ex. D-1 makes a reference to the order of the Tahsildar, in
    our view, there is no impediment in receiving the order of the
    Tahsildar dated 28.07.1971 as additional documents and
    considering the same. Since the order of the Tahsildar has been
    referred to in the order of the Commissioner dated 17.07.1973
    (Ex.D-1), in our view, it will not have the effect of introducing new
    case necessitating remittance of the matter. So far as the other
    two additional documents namely, order of the Naib Tahsildar
    dated 01.09.1962 – order passed in the suit filed under Section
    250 of the M.P. Land Revenue Code and the order of the District
    Collector dated 21.11.1972, they are not received as additional
    evidence.
  7. The order of the Commissioner dated 17.07.1973 makes a
    reference to the order of the Tahsildar dated 28.07.1971 which in
    turn refers to the suit filed by the predecessors of the plaintiffsrespondents under Section 250 of the MP Code in which
    28
    plaintiffs-respondents were unsuccessful in challenging the lease
    in favour of Gaya Din/Hanuman Din. This document was not
    produced before the Courts below and now only produced as
    additional evidence. As discussed earlier, we are not inclined to
    receive this document as additional evidence. In our considered
    view, the first Appellate Court and the High Court fell in error in
    not taking into consideration the categorical findings recorded in
    the order of the Commissioner (Ex. D-1) that the plaintiffsrespondents got the entries in the revenue records in connivance
    with the Patwari and that the Patwari was guilty of grave
    misconduct.
  8. Limitation:- The respondents’ suit was for the reliefs of
    declaration of title and consequential possession of the suit lands.
    The suit was instituted on 17.10.1975. The appellants contended
    that the suit is hopelessly time barred as according to them, the
    cause of action arose for the first time in the year 1929, when the
    patta was issued in favour of the appellants’ grandfather Gaya
    Din and then in the year 1935, when the Act was promulgated by
    the Maharaja of Rewa and then in the year 1952, when Jagirdari
    was abolished and Hanuman Din became the tenant of the State
    instead of Jagirdar and lastly on 02.11.1960, when the name of
    29
    Hanuman Din was entered by the Tahsildar as bhumiswami. By
    dismissing the suit, the trial court held that the
    respondents/plaintiffs must have filed the suit within twelve years
    of possession of the defendants or dispossession of the plaintiffs.
    In the plaint, the respondents have averred that they came to
    know about the lease of the lands in favour of Gaya Din only in
    the month of August, 1969 whereas the first Appellate Court held
    that the suit was within the period of limitation of twelve years by
    treating the cause of action to have arisen on 06.11.1974 i.e. on
    the date of order of the Sub-Divisional Magistrate in Section 145
    proceedings. Since we considered the matter at length on merits,
    we are not inclined to go into the question of limitation.
  9. Case of the respondents-plaintiffs is that as per Section 5 of
    the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act,
    1952, all the Jagir Lands were resumed by the then Vindhya
    Pradesh Government on 23.06.1953. On that date, illaqedar was
    not authorised and was not having jurisdiction to issue patta. The
    merit of the contention is to be considered in the light of the
    provisions of Rewa Land Revenue and Tenancy Act, 1935 (Rewa
    Act) and Vindhya Pradesh Act, 1952.
    30
  10. The learned senior counsel for the appellants stated that in
    1929, there was no codified revenue law in the State of Rewa. In
    1935, Maharaja of Rewa promulgated the Rewa Land Revenue
    and Tenancy Act, 1935. Section 2 of the Rewa Act repealed all
    earlier government notices, rules, circulars, orders, notifications
    etc. that are inconsistent to the said Act; but saved the action
    taken thereunder. Thus, the action taken thereunder the said Act
    like grant of patta etc. was saved. Case of the appellantsdefendants is that by virtue of Section 2 of the Rewa Act, grant of
    patta to Gaya Din is saved. It is also their case that Section 3 of
    the Rewa Act saved the existing proceedings and the fathers of
    the respondents could have proceeded against the appellants
    under Sections 46 and 142 of the Rewa Act. However, they have
    not initiated any proceedings under the said provisions of the Act.
    In 1948, the State of Rewa acceded to India and became part of
    the State of Vindhya Pradesh. In 1952, the State of Vindhya
    Pradesh abolished the system of Jagirdari by the Vindhya
    Pradesh Abolition of Jagirs and Land Reforms Act, 1952. Under
    Section 26 of the Vindhya Pradesh Act, the appellants’ father
    Hanuman Din became direct tenant of the State in place of
    31
    Jagirdar and under Section 28 of the Act, he became a pattedartenant.
  11. By the States Reorganization Act, 1956, the erstwhile State
    of Vindhya Pradesh became a part of larger Madhya Pradesh.
    Subsequent to which, the State of Madhya Pradesh enacted the
    M.P. Land Revenue Code, 1959 (M.P. Code) whereby the
    appellants’ predecessor Hanuman Din being a pattedar-tenant in
    Vindhya Pradesh in possession of the lands, became their
    Bhumiswami under Section 158(1)(d)(i) of the M.P. Code. After
    following the due procedure laid down under Sections 109 and
    110 of the M.P. Code, his name was entered in revenue records.
  12. The trial court rightly held that the disputed lands belonged
    to the iIlaqa and the Pawaidar was empowered under the
    provisions of Section 44 of the Rewa Act to issue the said lease
    (Ex. D-20). Section 44 of the Rewa Land Revenue and Tenancy
    Act, 1935 reads as under:-
    “44. Conferment of Pattas – (1) In a kothar village, the
    following revenue officers are authorised to confer a patta:-
    ……….
    (2) In a pawai, the following persons may confer a patta:-
    (a) at a revision of settlement – the Settlement Officer and
    Assistant Settlement Officers,
    (b) during the currency of Settlement –
    32
    A pawaidar in pawai land not included in a sub-pawai;
    A sub-pawaidar in respect of land included in his subpawai;
    A mortgagee in possession;
    A mortgagor in possession;
    The Court of Wards in land under its superintendence;
    A widow having life interest in a pawai or sub-pawai;
    ……..”
  13. The learned senior counsel for the respondents-plaintiffs
    submitted that upon consideration of the evidence of Hanuman
    Din (DW-1), the first appellate court recorded a finding of fact that
    in the year 1954, patta was granted in favour of Gaya Din
    (defendants’ father) and as per the testimony of Hanuman Din
    (DW-1), when patta was issued, Hanuman Din was 35 years old.
    It was submitted that based on the evidence of Hanuman Din, the
    first appellate court recorded finding that patta was granted in
    favour of Gaya Din in the year 1954 by which time, the tradition of
    Pawai has been removed and therefore, patta granted in favour
    of Gaya Din is not a valid one. The first appellate court arrived at
    such a finding without proper facts and by drawing an inference
    noting that when DW-1 was examined in 1984, he was aged 65
    years from which the first Appellate Court inferred that DW-1 must
    have been born in 1919. Referring to the statement of DW-1 that
    when patta was issued, he was aged 35 years, the first appellate
    33
    court inferred that patta must have been issued in 1954 (DW-1
    born in 1919 + 35=1954) and by that time, system of Pawai had
    been removed. In this regard, the learned senior counsel for the
    respondents-plaintiffs submitted that as per Section 5 of the
    Vindhya Pradesh Act, all the Jagir Lands were resumed in the
    then Vindhya Pradesh Government on 23.06.1953, hence, on this
    date, Pawaidar/iIlaqedar/Jagirdar were not authorised and were
    not having jurisdiction to issue patta and therefore, the finding of
    the first appellate court that the patta issued in the name of Gaya
    Din in the year 1954 is not a valid one and the said findings of
    fact cannot be interfered with.
  14. The finding of the first appellate court that the patta was
    granted to Gaya Din in 1954 and that illaqedar was not competent
    to issue patta is misconceived. As discussed earlier, patta was
    granted to Gaya Din not in 1954 but in Samvat 1986 (1929 A.D.)
    when admittedly the illaqedar had such power. That apart, the
    validity of patta so granted cannot be determined based on the
    inference drawn as to the age of DW-1-Hanuman Din. The
    learned senior counsel appearing for the appellants has drawn
    our attention to the provisions of Vindhya Pradesh Act and
    submitted that as per Section 5 of the said Act, the State
    34
    Government by a notification appointed a date for the resumption
    of any class of Jagir Lands and the consequences of such
    resumption are set out in Section 6 of the said Act. We find
    substance in the submission of the learned senior counsel for the
    appellants that in terms of Section 28 of the said Act, the
    appellants who were till then the tenants of intermediary/Jagirdar
    shall be deemed to be pattedar tenant in respect of the said
    lands. Section 28 of the Vindhya Pradesh Abolition of Jagirs and
    Land Reforms Act, 1952 reads as under:-
  15. Certain occupants of lands to be pattedar tenants. – (1)
    Subject to the provisions of sub-section (2) every person who is
    entered in the revenue record for a continuous period of three
    years as an occupant of any Jagir-land at the date of resumption,
    shall be deemed to be pattedar tenant in respect of such land
    which shall be assessed at the village rate.
    (2) Nothing in sub-section (1) shall apply to any sir or khudkasht
    land which is allotted to the Jagirdar under Section 22 or any
    grove land possession of which the Jagirdar is entitled to retain
    under clause (c) of Section 7.
    In view of the provisions of the above Act, the first appellate court
    erred in saying that the patta in favour of Gaya Din was granted in
    the year 1954 and by that time, Pawaidar/iIlaqedar was not
    having jurisdiction to issue patta.
    35
  16. Re: Finding of the first appellate court: Ownership of
    the respondents not terminated in a legal way:- The first
    appellate court held that the ownership of Rameshwar and Ram
    Sahai was not terminated in a legal way and therefore, they are to
    be treated as owners of the suit properties. The first Appellate
    Court further held that since the ownership of Rameshwar and
    Ram Sahai was not terminated in a legal way, the lease deedEx.D-20 which has been produced on behalf of defendant No.1
    cannot be treated to be a proved document and on those
    findings, set aside the finding of the trial court that defendant No.1
    is having a legal right of ownership of the disputed lands. The first
    Appellate Court, in our view, was not right in doubting the
    correctness of Ex. D-20 and not right in observing that defendant
    No.1 is not having a legal right of ownership on the disputed
    lands. The first appellate court and the High Court fell in error in
    not taking into consideration Ex.D-1-order of the Commissioner
    dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971
    and other documents showing grant of lease/patta in the name of
    Gaya Din and the continued possession of Gaya Din and his sonHanuman Din and the appellants. The first Appellate Court and
    the High Court erred in brushing aside the findings recorded by
    36
    the Commissioner dated 17.07.1973 as to the misconduct of the
    patwari in making entries in the revenue records.
  17. In the suit for declaration for title and possession, the
    plaintiffs-respondents could succeed only on the strength of their
    own title and not on the weakness of the case of the defendantsappellants. The burden is on the plaintiffs-respondents to
    establish their title to the suit properties to show that they are
    entitled for a decree for declaration. The plaintiffs-respondents
    have neither produced the title document i.e. patta-lease which
    the plaintiffs-respondents are relying upon nor proved their right
    by adducing any other evidence. As noted above, the revenue
    entries relied on by them are also held to be not genuine. In any
    event, revenue entries for few Khataunis are not proof of title; but
    are mere statements for revenue purpose. They cannot confer
    any right or title on the party relying on them for proving their title.
    Observing that in a suit for declaration of title, the plaintiffsrespondents are to succeed only on the strength of their own title
    irrespective of whether the defendants-appellants have proved
    their case or not, in Union of India and others v. Vasavi Cooperative Housing Society Limited and others (2014) 2 SCC
    269, it was held as under:-
    37
    “15. It is trite law that, in a suit for declaration of title, the burden
    always lies on the plaintiff to make out and establish a clear case
    for granting such a declaration and the weakness, if any, of the
    case set up by the defendants would not be a ground to grant
    relief to the plaintiff.”
  18. Upon appreciation of evidence, the trial court has recorded
    findings on various issues which was reversed by the first
    Appellate Court. Since the first Appellate Court reversed the
    judgment of the trial court, in the second appeal, the High Court
    ought to have weighed and considered the evidence and
    materials. The order of the High Court dismissing the appellant’s
    appeal by affirming the findings of the first Appellate Court is
    mainly on the ground that in the absence of any order of
    abandonment or revocation of the patta granted to the
    respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the
    appellants-defendants was illegal. The High Court, in our view,
    did not appreciate the patta (Ex.D-20) granted in favour of the
    forefathers of the appellants by the competent authority in 1929
    and the report of the Revenue Inspector dated 05.10.1969. The
    first Appellate Court and the High Court did not consider Ex.D-1-
    Order of the Commissioner dated 17.07.1973 and the report of
    the SDO dated 21.10.1969 and other revenue records showing
    38
    that the forefather of the appellants-defendants namely Gaya Din
    was given the patta (Ex.D-20) and since then, Gaya Din and
    Hanuman Din were in possession of the properties. The High
    Court has not properly appreciated the evidence and materials on
    record and the impugned judgment is liable to be set aside.
  19. In the result, the judgment of the High Court in the Second
    Appeal No.174 of 1989 dated 05.02.2007 is set aside and this
    appeal is allowed. The Suit No.68-A/75 filed by the respondentsplaintiffs is dismissed and the judgment of the trial court shall
    stand restored. No order as to cost.
    …..………………………….J.
    [R. BANUMATHI]
    …..………………………….J.
    [R. SUBHASH REDDY]
    New Delhi;
    April 09, 2019.
    39